Last week, President Obama rolled out significant changes to his administration’s immigration enforcement program with a televised announcement and a series of Department of Homeland Security (“DHS”) memos detailing the changes. Since then, immigrants’ rights advocates have been poring over the memos trying to determine whether they foretell a new dawn for immigration enforcement or more of the same misguided and destructive immigration enforcement practices that for years have torn apart families at an alarming rate.

Not all of the announcements were good. The President announced that he will continue to pour resources into policing the southern border by further bulking up the largest law enforcement agency in the country—Customs and Border Protection—which has an appalling track record of violence without accountability.

Among other positive changes, President Obama announced policies ending the controversial Secure Communities (“S-COMM”) program and constraining immigration authorities’ much-criticized use of ICE detainers. S-COMM is dead, to be replaced by something called the Priority Enforcement Program (“PEP”). It remains to be seen, however, just how much the problems that plagued S-COMM will persist under PEP.

Havoc Wreaked by S-COMM and Detainers
Secure Communities was, at its core, a program of collaboration between federal immigration authorities and local law enforcement agencies that used local resources to identify people subject to deportation. Under Secure Communities, every time anyone was arrested and booked by a police agency, their fingerprints were run through DHS’s immigration database. The lynchpin of S-COMM was the ICE detainer (or “immigration hold”), a request from ICE to a local law enforcement agency to imprison someone in custody past the time when they would otherwise be released from the criminal justice system in order to give ICE extra time to investigate the person’s immigration status. Although Secure Communities was intended to focus immigration enforcement resources on people with serious criminal convictions, in reality, S-COMM ensnared non-citizens from all backgrounds, fueling the mass deportation of valuable members of society and ripping apart families. Deportations reached record highs on President Obama’s watch.

The ACLU’s Detainer Litigation and Advocacy
The ACLU has long had concerns about the myriad civil liberties problems posed by S-COMM and ICE detainers. In March 2014, I testified at a Philadelphia City Council hearing that ICE detainers are often issued without any legal basis, can lead to racial profiling, and undermine trust in the police, threatening everyone’s safety.

In Pennsylvania, the kind of routine collaboration between local law enforcement and federal immigration officers engendered by S-COMM led to the illegal 3-day imprisonment in Lehigh County Prison of Ernesto Galarza, a U.S. citizen born in New Jersey, on an immigration detainer. After he was arrested on criminal charges (of which he was later acquitted), local police racially profiled him as being an undocumented immigrant and notified ICE of his arrest. ICE then issued a detainer to give itself more time to investigate Mr. Galarza’s immigration status. So when Mr. Galarza posted bail, instead of being released and reunited with his family, he was held for 3 more days, without any explanation or any opportunity to demonstrate his U.S. citizenship.

The ACLU and ACLU of Pennsylvania sued, and on March 4, 2014, won a huge victory when the Third Circuit became the first federal Court of Appeals to rule that local agencies do not have to comply with ICE detainer requests, and can be held liable for their role in causing an unlawful detention when there is no constitutionally valid basis for the detainer. In light of that ruling, in April 2014, Lehigh County paid Mr. Galarza $95,000 to settle his case and agreed to adopt a policy of no longer honoring ICE detainers without a court order.

Shortly after the Galarza ruling, Mayor Nutter issued an executive order directing Philadelphia facilities not to honor any ICE detainer requests without a judicial warrant. In August 2014, the ACLU-PA, working with PICC, Juntos, New Sanctuary Movement of Philadelphia, and NDLON, wrote to county officials all over the commonwealth to alert them to the court ruling in Galarza and urge them to adopt local policies of declining ICE detainer requests that are not accompanied by a judicial warrant. At last count, 40% of the counties in Pennsylvania reported that their facilities will no longer honor ICE detainer requests without a court order.

The End of S-COMM and Routine Detainers
Last week, the President acknowledged the many failings of S-COMM and the problematic use of detainers and discontinued Secure Communities:

“[S-COMM] has become a symbol for general hostility toward the enforcement of our immigration laws. Governors, mayors, and state and local law enforcement officials around the country have increasingly refused to cooperate with the program, and many have issued executive orders or signed laws prohibiting such cooperation. A number of federal courts have rejected the authority of state and local law enforcement agencies to detain immigrants pursuant to federal detainers issued under the current Secure Communities program.”

Under the new executive action, S-COMM will be replaced by the “Priority Enforcement Program” (or “PEP”). S-COMM and PEP have some features in common. Importantly, fingerprint-sharing of all arrestees with DHS for immigration enforcement purposes will continue under PEP—without any limitations. And DHS can still ask local law enforcement agencies and jails for notification when a non-citizen is scheduled to be released from local custody. But when it comes to actually issuing detainers and taking non-citizens into federal custody for immigration proceedings, PEP appears to constrain federal agents in ways that S-COMM did not.

According to DHS, under PEP, ICE will seek to transfer from local custody into immigration detention only certain “priority” non-citizens, including anyone believed by ICE to pose a threat to national security, as well as people engaged in terrorism or gang activity or convicted of certain crimes (any non-immigration-related felonies or a significant misdemeanor or 3 or more non-immigration-related misdemeanors). Further, under PEP, ICE is only permitted to issue detainers asking for a local agency to detain someone for ICE in “special circumstances” and only if the person is subject to a final order of removal or ICE has “other sufficient probable cause” to believe that the person is deportable.

DHS has yet to clarify the exact contours of ICE’s marching orders under these new policies; the policy memos are susceptible to several interpretations. And only time will tell how PEP is actually implemented. But the President’s acknowledgement that our immigration system badly needs fixing and that S-COMM was a failure—and his efforts to try to fix what he can—are welcome signs of change.

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Molly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights.

For the second consecutive legislative session, a bill that would greatly expand when law enforcement could collect your DNA has failed to pass in the state legislature. The bill would have invested a lot of additional money into the existing state DNA database, and more alarmingly, it would have required state police to collect DNA samples from individuals who were arrested for specific crimes, even if they were never actually charged.

The new collection would have been introduced gradually, covering only people arrested on suspicion of murder in the first year of implementation before expanding to felony sexual offenses in the second. By the third year, however, the mandate expands to arrestees of ALL felonies and certain specified misdemeanors. Even if an arrestee was never charged (let alone convicted) of the crime, the DNA sample would remain in the database unless the person filed a written request for removal and the request was granted.

We strongly opposed this bill. It almost goes without saying that everyone has an expectation that his or her genetic makeup will not be extracted and stored in a government database. To allow the police to collect and store DNA evidence even before charges have been filed violates this bedrock principle of privacy that is crystallized in the Fourth Amendment. (See – Our Work: In The Legislature)

Supporters of this bill got a win in the United States Supreme Court in 2013, when the court upheld Maryland’s arrestee DNA collection procedure as an adequate identification procedure. We—and many other groups and individuals—disagreed with the court’s interpretation of the Fourth Amendment and were incredibly cynical about the claim that arrestee DNA collection was primarily used for identification and not investigation, but because they ultimately interpret the Bill of Rights, our tactic had to change slightly. We were prepared to make a case that even if arrestee DNA collection is permissible under the Fourth Amendment, it still violates the search and seizure provision of the state constitution. The PA Supreme Court has articulated some scenarios where the state constitution affords a higher level of protection that the Fourth Amendment, but it can be a difficult argument to make and sell to legislators.

Fortunately, we never really had to make that argument. DNA collection expansion provoked strong opposition in the House, as numerous representatives expressed serious concerns about how this bill would encroach on people’s privacy. The opposition was truly bipartisan—members who could be described as very conservative, very liberal, or moderate all expressed their disapproval of such an extreme expansion of law enforcement’s power, and many of the representatives who helped defeat the bill in the 2011-12 session were willing to stand once again against the proposed DNA expansion. This opposition encouraged us greatly, and when it became clear that House Leadership was not going to act on the Senate bill, we were optimistic that the fight might be over.

In the final two weeks, however, the Senate revived DNA expansion by amending it into an unrelated online impersonation bill that the House had already passed. This was the Senate’s Hail Mary pass, as it hoped enough House members would be supportive of the online impersonation bill to overlook the DNA language that had been added.

Fortunately, our House allies came through for us again. After the bill passed the Senate, the House Rules Committee quietly removed the DNA amendment as violating the state constitution’s Single Subject Clause before there was any opportunity to debate the substance of the DNA amendment itself. With that, the House ended any fear that the arrestee DNA collection bill would pass this session.

The last two sessions have made it clear that there is definitely motivation within Senate leadership to expand DNA collection within the commonwealth, so we may have to fight a bill like this again next year. Hopefully, the failure to pass the bill in two consecutive sessions sends a strong message to the Senate that this is not a policy that the people of Pennsylvania support, but if the Senate remains insistent that this bill should pass, then those of us in Harrisburg next session will continue our efforts to lobby against this bill and any other proposed policy that would dramatically encroach on the privacy rights of Pennsylvanians.

—Paul Anderson is the 2014-15 Larry Frankel Legislative Fellow at the ACLU of Pennsylvania and a third year student at Penn State Dickinson School of Law.

Jose Juan Chavez-Alvarez had a day in court on Tuesday — or his attorneys did, anyway. He wasn’t there, because he has been detained by immigration authorities at York County Prison for 2 years, 5 months, and 15 days (and counting) without a bond hearing while his complex immigration case makes its way through the courts.

Mr. Chavez-Alvarez is a far cry from a “flight risk.” He came to the U.S. as a toddler nearly 40 years ago, and became a lawful permanent resident of the U.S. at 15. He honorably served in the U.S. Army for nearly a decade, earning several medals and achievement certificates. Today Mr. Chavez-Alvarez is a father to two teenage U.S. citizen sons, and he owns his home in Central Pennsylvania.

In 2000, while he was stationed in South Korea in the military, he was court-martialed and pled guilty to four non-violent military offenses related to a sexual encounter he had with a female service member following a night of drinking. He served his sentence of thirteen months for these military offenses. His criminal record is otherwise spotless.

Nonetheless, on June 5, 2012, ICE agents showed up at his home early in the morning to arrest him, alleging that he was deportable because of his military infractions more than a decade earlier.

He has been locked up at York County Prison ever since that morning. Mr. Chavez-Alvarez has now been in immigration detention for 898 days — more than twice as long as he spent in jail for his military offenses.

His immigration case is a strong one. There are several reasons why, his lawyer argues, he shouldn’t be deported.

So why is someone like Mr. Chavez-Alvarez with strong communities ties, who is not facing criminal charges or serving a sentence, and who may be fully entitled to stay in the U.S. languishing in jail?

A federal “mandatory detention” statute requires certain non-citizens in removal proceedings to be imprisoned while their immigration cases proceed. Because of this “mandatory detention” requirement, Mr. Chavez-Alvarez hasn’t had a bond hearing since he was whisked out of his home on the morning of June 5, 2012. He’s never had a chance to put up bail or prove that he’s not going to skip town before his immigration proceedings conclude.

This “mandatory detention” statute that has kept Mr. Chavez-Alvarez in immigration detention for nearly two and a half years now was never intended to authorize this kind of prolonged detention, said the Court of Appeals in 2011 in Diop, another ACLU case. To avoid constitutional problems, the court interpreted the statute to only authorize detention without a bond hearing for a “reasonable” initial period of detention. As the Supreme Court has noted, the length of detention contemplated by Congress when it passed this “mandatory detention” statute was between 1.5 and 5 months; when detention is prolonged beyond that threshold, it becomes increasingly constitutionally “suspect.”

But since the 2011 Diop decision, the government has not agreed to give a single non-citizen a bond hearing – even though many of them have been in immigration detention for years.

On Tuesday, Mr. Chavez-Alvarez’s lawyer and the ACLU as amicus curiae (“friend of the court”) urged the Court of Appeals to provide guidance to the lower courts and the government by ruling that there should be a presumption that immigration detainees get a bond hearing after 6 months of mandatory detention so a court can make an individualized determination about whether it is necessary to continue imprisoning people like Mr. Chavez-Alvarez during his legal proceedings.

As the ACLU told the court on Tuesday, because immigration proceedings are often long, drawn-out affairs – especially where the non-citizens have novel or complex claims about their right to remain in the U.S. – prolonged mandatory detention often discourages non-citizens from pursuing avenues of relief from deportation that they’re entitled to, because asserting your rights means spending years in jail – even if you win. Non-citizens shouldn’t have to accept years of imprisonment without a bond hearing as a condition of asserting their legal rights. No one should.

Arguing Tuesday on behalf of Mr. Chavez-Alvarez was former ACLU-PA staff attorney Valerie Burch. Michael Tan, from the national ACLU Immigrants’ Rights Project, argued on behalf of the ACLU and ACLU of Pennsylvania as amici curiae.

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Molly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights.

While officials in the Corbett administration were busy talking about Mumia Abu-Jamal to every microphone they could find, the ACLU of Pennsylvania spent the last two weeks of the legislative session working quietly with the Pennsylvania Coalition Against Domestic Violence to pass a bill that will help keep victims of crime in their homes.

The passage of House Bill 1796 was one of the glowing civil liberties achievements of the 2013-14 legislative session at the General Assembly. The new law prohibits municipalities from punishing victims of crime for calling for emergency services. It was motivated by our litigation against the borough of Norristown, in Montgomery County, in which our client, Lakisha Briggs, was threatened with eviction under the borough’s “nuisance property” ordinance. Lakisha was tormented on multiple occasions by her ex-boyfriend. After emergency services were called to her home a third time, an incident that included her ex stabbing her in the neck with a shard of glass, the borough employed the ordinance to begin eviction proceedings against Lakisha and her family.

We argued in our lawsuit that the people have a First Amendment right to call upon their government for help.

Even with that backdrop, the passage of this bill almost didn’t happen.

After we filed our litigation, Representative Todd Stephens, a Republican from Montgomery County who is also a former assistant district attorney, introduced HB 1796. Rep. Stephens convened key stakeholders, including PCADV, ACLU-PA, housing advocates, and the associations that represent municipalities, to hammer out language that everyone could agree to and that achieved what we wanted. That agreed-to language passed the state House unanimously.

When the bill arrived in the state Senate, however, it was nearly derailed by unrelated amendments that were sought by the Pennsylvania Retailers Association, the Pennsylvania Restaurant and Lodging Association, and the National Rifle Association. (More about that drama here.)

On the Senate’s second-to-last day of session, HB 1796 was saved from those unwanted amendments when Senator Vincent Hughes, a Democrat from Philadelphia, successfully used a procedural motion called “revert to the prior printer’s number.” In English, this means the bill goes back to a previous form. In this case, Senator Hughes wanted to go back to the version of the bill that passed the House. That motion passed, 26-22, with six Republicans joining 20 Democrats in voting for the motion.

That wasn’t the end of the drama, though. When the Senate calendar was released the next day, the chamber’s final day of session for the year, the bill was marked “over,” meaning it would not get a vote and would not pass this session, forcing us to go back to the beginning of the process next year. While allies like the Women’s Law Project and others got the word out to grassroots supporters around the state, lobbyists from PCADV, especially, and ACLU-PA worked the halls of the capitol to convince Senate Republicans that this was a good vote to hold and that this bill was important.

Ultimately, Senate Majority Leader Dominic Pileggi called up the bill for a final vote. And, to his credit, Senator John Eichelberger, who introduced one of the unrelated amendments sought by the restaurants and the retailers, spoke in favor of the bill on the Senate floor. It passed unanimously.

Governor Corbett signed the bill yesterday, so he literally lifted a finger to help.
This was truly a bipartisan, bicameral, multi-organization effort. The real credit goes to everyone I’ve named above- Representative Stephens, Senator Hughes, Senator Pileggi, the 26 senators who voted for Hughes’ motion. And the most credit goes to our friends at the Pennsylvania Coalition Against Domestic Violence, who struggled for this bill until the very last day and who wouldn’t let it pass with unwanted amendments.

Now people who are victims of crime, like Lakisha Briggs, know that they can call for help when they need it. They don’t have to choose between emergency service from their government or keeping their homes.

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Andy Hoover is responsible for the ACLU-PA’s lobbying efforts at the state level in Harrisburg and at the federal level in Washington, D.C. From 2004 to 2008, he was a community organizer for ACLU-PA and is an experienced advocate, cutting his teeth in the anti-death penalty movement during the Ridge-Schweiker administration. Andy also serves on the boards of directors of Pennsylvanians for Alternatives to the Death Penalty and The Interfaith Alliance of Pennsylvania.